HKSAR v. CHAN SUI MAN

HCMA 894/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 894 OF 2004

(ON APPEAL FROM ESCC 1710 OF 2004)

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J U D G M E N T

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1.  This is an appeal against conviction.  The Appellant was charged with one count of theft and was convicted after trial.

2.  The important witness in this case is the police officer who observed the alleged theft from a fourth floor window of the Chai Wan Police Station.  He said that it was at about 9.30 pm when he was preparing to start his shift that he saw two motorcycles parked side by side on the opposite pavement.  One of the motorcycles was covered by a canvas sheet.  He saw a male wearing a grey short-sleeved T-shirt, grey pants and white sports shoes using his hand to lift the rear box of the motorbike that was covered by the canvas with force.  He noticed that when a public light bus passed by, this male stopped what he was doing and walked to and fro along the road.

3.  This evidence about the public light bus passing by was said in cross-examination but was not in his original witness statement.  It was only first mentioned when he gave evidence in Court.  He said he also saw this male use a key to tinker with the box of the uncovered motorcycle.  Then after the public light bus have left, he saw the male again attempted to lift the box of the canvas-covered motorbike and he heard a loud bang; and he believed that that was the noise caused by the box opening.  He saw the male remove a round item from the box.  He said that he then rushed down from the fourth floor to the street and he saw that same male with the same clothing, lowering a round object to the ground from under the canvas covering.  PW2 then said he intercepted this male, who was the Appellant.  He then asked PW3, another police officer to guard the motorcycle and he took the Appellant into the police station and his evidence was that when he arrested and cautioned the Appellant, the Appellant had admitted that he committed this offence and that it was a moment of greed.  PW2 also confirmed that the motorbike that was adjacent to the canvas-covered motorbike belonged to the Appellant.

4.  What was in issue at the trial was that the admission that was alleged to have been made by the Appellant was in fact not made by him, and so the learned Magistrate then used the alternative procedure to decide the special issue.  One of the allegations made by was that the Defendant, at that time, had asked PW2 to allow him to call his wife to get a lawyer.  But that request was denied by PW2.  The Appellant’s case was that he had a mobile telephone with him and that it was taken away from him by PW2 when he was refused permission to call his wife.  PW2’s evidence was that at no stage was the Appellant’s mobile phone removed from him.

5.  At the trial, an extract of the police Occurrence book was produced and this was admitted as exhibit P-6.  The book, apart from the date recorded, did not note the time as to when the telephone of the Appellant was taken from him, but without doubt at some stage, when the Appellant was in the police station, his mobile telephone had been taken from him and kept in the custody of the duty officer.  The two duty officers who was in charge of the Occurrence book were called as PW5 and PW6.  But neither of them could remember who had made that mysterious entry in the Occurrence book.  PW5 had said in evidence that that entry in the Occurrence book would normally been made when the telephone or the items were removed from the arrested person and placed in the custody of the duty officer.  There was no information at all in the occurrence book as to who had made this entry.

6.  As pointed out to me by Miss Chan, for the Respondent, the learned Magistrate has observed that this was very unsatisfactory.  And I do echo the learned Magistrate’s observation because this has serious repercussions in cases like the present.  The Appellant, undoubtedly had a right to request to call his family.  PW2 denied that such request was made and denied that he had ever taken away the telephone from the Appellant, so the credibility of PW2 was in issue.  It was put into evidence that in fact the Appellant’s mobile telephone had been removed from him at one stage.  The prosecution was unable to prove when this was.  The only evidence about when the telephone was taken away from the Appellant was from the Appellant himself.

7.  I have read the learned Magistrate’s Statement of Findings and although the learned Magistrate did note this matter about the occurrence book, she had not dealt with it insofar as how this would affect the ultimate credibility of PW2 and the prosecution’s case.  On this special issue and ultimately on the general issue, the learned Magistrate made the observation that she did not believe the Defendant on this special issue.  It is not for the Defendant to prove anything.  It is for the prosecution to prove its case.  So in the circumstances, it was unsatisfactory for the learned Magistrate not to have resolved this matter of the occurrence book when she made her findings.  Of course, the learned Magistrate had a discretion in whom to believe.  As she had opportunity of observing the various witnesses giving evidence.  When a piece of evidence is material to the learned Magistrate’s findings of credibility of a particular witness, such as in this case, the mystery of the Occurrence book entry, it was necessary for the Magistrate to resolve that when she is making her findings in relation to the important witness in this case.  If the learned Magistrate had said that she had considered this and for some reasons did not consider that it was important or affect the credibility of PW2 then it may have been satisfactory in those circumstances.

8.  It was certainly not evidence to be swept aside, so in view of that, I am left with a lurking doubt as to the conviction.  So the doubt should be resolved in favour of the Appellant and so I would therefore allow the appeal and quash the conviction in this case.  I consider that the Appellant should have his costs on the appeal and it should be taxed if not agreed.